Appeals from the Orders of the Pennsylvania Board of Probation and Parole in the case of Kenneth Jones, dated February 5, 1981 and January 26, 1983.
Lester G. Nauhaus, Public Defender, with him John H. Corbett, Jr., Chief of Appellate Division, and Paulette J. Balogh, Appellate Counsel, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
President Judge Crumlish, Jr. and Judges Colins and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 81 Pa. Commw. Page 195]
On May 5, 1971, Kenneth Jones, petitioner, was sentenced to two consecutive terms of two and one-half to five years each; and, after serving his minimum term, he was paroled on August 21, 1976. He was arrested on June 6, 1977 in Allegheny County for firearm violations, and on June 9, 1977 a parole violation warrant was filed against him based upon these charges and for technical parole violations. On August 6, 1977, he escaped from the Allegheny County prison only to be arrested on August 18, 1977 and charged then with escape and conspiracy. On September 16, 1977, his firearm violations were nolle
[ 81 Pa. Commw. Page 196]
prossed, and on December 14, 1977, he was found guilty of the escape charges. His sentencing was deferred until April 11, 1978 whereupon he was sentenced to two to seven years. On June 28, 1978, the Pennsylvania Board of Probation and Parole (Board) ordered that he be recommitted effective June 21, 1977, as a convicted and technical parole violator with five years to be served on his original sentence. On January 5, 1981, he was granted parole to be effective February 2, 1981; however, on January 7, 1981, he was charged with an institutional misconduct and his parole was therefore revoked by the Board on February 5, 1981 without a hearing. On January 26, 1983, furthermore, the Board, allowed the following credits to be applied to his various sentences; the time spent in prison from June 8, 1977 to August 6, 1977 to be applied against his original sentence of May 5, 1971, and from August 18, 1977 to April 11, 1978 to be applied against his escape charges.
Jones argues that the Board erred in crediting his time spent in prison from August 18, 1977 to April 11, 1978 only to his escape charges and not to his original charges. He also contends that the Board erred in revoking his parole without affording him a hearing.
As to the time credit, in Sturtz v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 71, 453 A.2d 1093 (1983), our Court articulated the legal test for applying credits as follows: ". . . pretrial detention time is counted toward the new sentence, not toward the backtime, when bail is not posted, even though bailposting may admittedly be unlikely." (Emphasis added.) Id. at 73, 453 A.2d at 1094.*fn1 Inasmuch as bail was never posted here, we believe that
[ 81 Pa. Commw. Page 197]
the Board was correct in crediting the aforementioned time only to the charges relating to the escape.
As to the parole revocation without a hearing, in Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court stated these minimal requirements ...